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The Government Knows Best?: The

Governments Use of Minors as a Shield
for Imposing Paternalistic Motives

MELANEY HODGE*
ABSTRACT

In Educational Media Co. at Virginia Tech., Inc. v. Swecker, the Fourth

Circuit erroneously concluded that a Virginia regulation banning alcohol
advertisements in college newspapers was constitutional under Central
Hudson Gas & Electric Corp. v. Public Service Commission of New York. Under
the Central Hudson test, the Governments ability to limit commercial
speech requires the Government to assert a narrowly tailored, substantial
interest that materially alleviates a perceived harm. The Fourth Circuits
analysis in Swecker was flawed because it incorrectly applied the third and
fourth prongs of the Central Hudson test. Not only does the availability of
other advertising mediums undermine the material effect that banning
alcohol advertisements in college newspapers would have, but alternative
measures such as counter-advertising are more narrowly tailored to
achieving the Governments objective. By preventing the advertisement of
alcohol in college newspapers, the Fourth Circuits decision resulted in the
imposition of paternalistic goals on adults and minors and a corresponding
deterioration of constitutional rights.

Candidate for Juris Doctor, New England Law | Boston (2012). B.A., History, magna
cum laude, High Point University (2009). I would like to thank my parents, Kevin and Karen
Hodge, without whose support I would be lost, as well as the rest of my family. I would also
like to thank my peers who helped make my law school experience magical.
*

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INTRODUCTION

he American experience . . . contains dispiriting examples

that confirm [ ] the road to hell is paved with good
intentions.1 The Virginia judiciary had noble intentions in
Educational Media Co. at Virginia Tech., Inc. v. Swecker by trying to reduce the
negative results of underage drinking.2 Despite those good intentions, the
Fourth Circuits affirmation of the advertising ban opened the door to a
world without constitutional protection for commercial speech. 3 By
upholding the regulation, the Fourth Circuit allowed the Government to
use minors as a shield to impose paternalistic government policies on an
adult population.4
Under the existing protection for commercial speech, the Fourth
Circuit should have found the Virginia advertising ban as an impermissible
violation of the First Amendment.5 After the Supreme Courts decision in
44 Liquormart, Inc. v. Rhode Island, commercial speech regulations are
judged by stricter scrutiny than that applied by the Fourth Circuit.6 The
Fourth Circuit in Educational Media Co. at Virginia Tech. Inc. v. Swecker
improperly concluded that the Virginia Government could ban the
publication of alcohol advertisements in college newspapers according to
the Supreme Courts Central Hudson test, which stands for the
Governments limited ability to regulate commercial speech.7 By
incorrectly determining that the Virginia Government satisfied the four
1 Lyrissa Barnett Lidsky, Nobodys Fools: The Rational Audience as First Amendment Ideal,
2010 U. ILL. L. REV. 799, 844.
2 See Brief of Appellant at 10, Educ. Media Co. at Va. Tech., Inc. v. Swecker, 602 F.3d 583
(4th Cir. 2010) (No. 08-1798), 2009 WL 773250 [hereinafter Brief of Appellant].
3 See Educ. Media Co., 602 F.3d at 592 (Moon, J., dissenting) (*A+ state could with ease
restrict commercial speech in the service of other objectives that could not themselves justify a
burden on commercial expression. (quoting Rubin v. Coors Brewing Co., 514 U.S. 476, 487
(1995))). Commercial speech is defined as communication (such as advertising and
marketing) that involves only the commercial interests of the speaker and the audience, and is
therefore afforded lesser First Amendment protection than social, political, or religious
speech. BLACKS LAW DICTIONARY 1529 (9th ed. 2009).
4

See infra Part IV.

See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (plurality opinion) .
6 2 SMOLLA & NIMMER, FREEDOM OF SPEECH 20:9 (2010) (Taken in combination, the
opinions of 44 Liquormart went a substantial way toward elevating First Amendment
protection for commercial speech to nearly the level of scrutiny that applies to the contentbased regulation of noncommercial expression.).
5

See Educ. Media Co., 602 F.3d at 588, 591 (explaining the four-prong Central Hudson test
for determining commercial speech violations and concluding the ban on alcoholic
advertisements passes muster under the Central Hudson test).

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prongs of the Central Hudson analysis, the Fourth Circuits decision is a

paternalistic imposition that degrades the protection afforded to
commercial speech and is in direct opposition to Supreme Court
precedent.8 Had the Fourth Circuit imposed the correct level of scrutiny
and properly applied the third and fourth prongs required by the Central
Hudson test, it would have concluded that Virginia could not restrict the
dissemination of lawful, non-misleading advertisements.9
This Comment argues the Fourth Circuit was wrong to sustain the
Virginia advertising ban. Part I provides the relevant background
concerning the First Amendment and the development of commercial
speech. Part II argues that the Fourth Circuit incorrectly applied the third
prong of Central Hudson because the availability of other forms of media
means the Governments regulation will not advance their interest to a
material degree as required. Likewise, Part III argues that the Fourth
Circuit incorrectly applied the fourth prong because the regulation was
over-inclusive, and there were less burdensome alternatives. Finally, Part
IV analyzes the impact of the Fourth Circuits decision. The decision will
impact all First Amendment jurisprudence by reinforcing the
unconstitutional ideology that government may act with paternalistic
motives to silence free speech.
I.

Background
A. First Amendment

The First Amendment states: Congress shall make no law respecting

an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances.10 The most significant rights American citizens have
developed from these forty-five words.11 For the past 200 years, the courts
have struggled over what speech should be entitled to constitutional
protection.12 Modern First Amendment jurisprudence reflects the
importance our society places on the ability to speak freely.13
8 See 44 Liquormart, Inc., 517 U.S. at 500 (plurality opinion) (*S+pecial care should
attend the review of such blanket bans.).
9

See id. at 516 (explaining the failure to justify bans on advertising results in
abridgment of the First Amendment and violation of the Constitution).
10 U.S. CONST. amend. I.
11 JETHRO LIEBERMAN, FREE SPEECH, FREE PRESS, AND THE LAW 10 (1st ed. 1980).
12 FRANKLYN S. HAIMAN, SPEECH AND LAW IN A FREE SOCIETY 3-4 (1980).
13 See 1 SMOLLA & NIMMER, supra note 6, 2:13 (These doctrines, which have evolved
through fits and starts over time through decisions of the Supreme Court, are expressions of

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B. The Development of Commercial Speech

1.

Before the Dawn of Commercial Speech Protection

Before the Supreme Court decision in Virginia State Board of Pharmacy v.

Virginia Citizens Consumer Council, commercial speech was not entitled to
any constitutional protection.14 In 1942, the Court concluded that the First
Amendment did not forbid the Government from restricting purely
commercial advertising.15 However, in 1975, the Court changed direction
in Bigelow v. Virginia and determined that commercial information was
entitled to some constitutional protection.16
The Supreme Court did not directly affirm the constitutional protection
of commercial speech until 1976.17 In Virginia State Board of Pharmacy, the
Supreme Court recognized that just because speech is connected to the
marketplace of products or of services does not make it valueless in the
marketplace of ideas.18 The Court acknowledged that an individuals
desire for the free flow of commercial information . . . may be as keen, if
not keener by far, than his interest in the days most urgent political
debate.19
2.

Creation of the Central Hudson Test

The Supreme Court did not define what constitutional protection

commercial speech was entitled to until 1980 in Central Hudson Gas &
Electric Corp. v. Public Service Commission of New York when the Court

social policy and philosophy.); see also 16A AM. JUR. 2D Constitutional Law 470 (2009) (The
rights of free speech and free press . . . are among the most precious of the liberties
safeguarded by the Bill of Rights.).
14 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 758 (1976)
(There can be no question that in past decisions the Court has given some indication that
commercial speech is unprotected.).
15 Valentine v. Chrestensen, 316 U.S. 52, 54 (1942); see also Ashutosh Bhagwat, The Test
That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, 2007 U. ILL. L. REV.
783, 794 (Until 1976, the Court understood commercial speech to be completely outside the
ambit of First Amendment and therefore subject to unrestricted regulation.).
16

See 421 U.S. 809, 825 (1975).

See Va. State Bd. of Pharmacy, 425 U.S. at 760-61 (Here . . . the question whether there is
a First Amendment exception for commercial speech is squarely before us. Our pharmacist
does not wish to editorialize on any subject, cultural, philosophical, or political. . . . The idea
he wishes to communicate is simply this: I will sell you the X prescription drug at the Y
price. Our question . . . is whether this communication is wholly outside the protection of the
First Amendment.).
17

18
19

Id. at 760 (quoting Bigelow, 421 U.S. at 825-26).

Id. at 763.

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created a four-prong test that has governed commercial speech regulations

ever since.20 At the heart of the Courts analysis was the rejection of the
highly paternalistic contention that the government has the complete
power to suppress or regulate commercial speech.21 The Court reaffirmed
its contention that people will perceive their own best interests if only
they are well enough informed, and . . . the best means to that end is to
open the channels of communication rather than to close them . . . .22
The first prong of the Central Hudson test is used to determine whether
or not the speech is entitled to First Amendment protection.23 If the
information is neither misleading nor related to unlawful activity, the
Governments ability to restrict the communication is limited.24 Secondly,
the state must assert a substantial interest to be achieved by restrictions on
commercial speech.25 Typically parties stipulate the first two prongs of the
analysis and focus their controversy on the third and fourth factors.26
The third factor of the Central Hudson test requires that the
restriction . . . directly advance the state interest involved; the regulation
may not be sustained if it provides only ineffective or remote support for
the governments purpose.27 The regulation must alleviate the
Governments perceived harm to a material degree.28 The state has the
burden of proving this element and the burden is not satisfied by mere
speculation or conjecture.29 According to the Supreme Court, this factor is
particularly important because without it a State could with ease restrict
commercial speech in the service of other objectives that could not
themselves justify a burden on commercial expression. 30
Finally, the state must show the restrictions on commercial speech are
no more extensive than necessary to serve the governments interest. 31 In
establishing the test, the Court noted that if the governmental interest
20

447 U.S. 557, 563-64 (1980).

Id. at 562.
22 Id. (quoting Va. State Bd. of Pharmacy, 425 U.S. at 770).
23 See id. at 563.
24 Id. at 564.
25 See id.
26 See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 566 (2001) (failing to satisfy the
third and fourth prongs); Educ. Media Co. at Va. Tech., Inc. v. Swecker, 602 F.3d 583, 588-89
(4th Cir. 2010); Pitt News v. Pappert, 379 F.3d 96, 106-07 (3d Cir. 2004).
21

27

Cent. Hudson Gas & Elec. Corp., 447 U.S. at 564.

Fla. Bar v. Went For It, Inc., 515 U.S. 618, 626 (1995) (internal quotation marks
omitted).
29 Edenfield v. Fane, 507 U.S. 761, 770-71 (1993).
30 Rubin v. Coors Brewing Co., 514 U.S. 476, 487 (1995) (quoting Edenfield, 507 U.S. at
771).
28

31

Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 343 (1986).

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could be served as well by a more limited restriction on commercial

speech, the excessive restrictions cannot survive.32 While Central Hudson
does not require the least restrictive means, it does require a reasonable
fit between the legislatures ends and the means chosen to accomplish
those ends, . . . a means narrowly tailored to achieve the desired
objective.33
C. The Progression of Commercial Speech
The rise of constitutional protection for commercial speech has been
one of the most dramatic and interesting stories of modern First
Amendment jurisprudence.34 Since its inception in Virginia State Board of
Pharmacy, the Supreme Court has imposed a peculiar intermediate judicial
scrutiny at varying levels.35 The lowest level of judicial scrutiny was
applied by the Court in Posadas de Puerto Rico Associates v. Tourism Co. of
Puerto Rico,36 in which many feared that constitutional protection for
commercial speech had been lost.37 However, ten years later in 44
Liquormart, Inc. v. Rhode Island, the Court revitalized and heightened the
protection applied to commercial speech.38 Along the way, the Court
noted that commercial speech may not be given an automatic discount in
the scale of First Amendment values. 39
1.

Central Hudson Gas & Electric Corp. v. Public Service

Commission of New York

In Central Hudson Gas & Elec. Corp. v. Public Service Commission of New
York,40 the Court determined the validity of a New York law that banned
any advertisement that promot*es+ the use of electricity by electrical

32

Cent. Hudson Gas & Elec. Corp., 447 U.S. at 564.

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556 (2001) (quoting Went For It, Inc., 515
U.S. at 632) (internal quotation marks omitted).
33

34

2 SMOLLA & NIMMER, supra note 6, 20:1.

See id. 20:4 (noting the Supreme Court has not always been precise in its definitions
and not fully consistent in determining what constitutes protected commercial speech).
35

36 See 478 U.S. at 341-42. Some scholars perceived this decision as a regression in the
level of scrutiny that would be applied to the Governments restriction on free commercial
speech, but the Supreme Courts decision in 44 Liquormart, Inc. all but did away with Posadas.
2 SMOLLA & NIMMER, supra note 6, 20:9.
37

See Kathleen M. Sullivan, Cheap Spirits, Cigarettes, and Free Speech: The Implications of 44
Liquormart, 1996 SUP. CT. REV. 123, 123 (stating that the commercial speech doctrine was left
for dead after the Courts decision in Posadas).
38
39
40

Id.; see also 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 504 (1996).
Sullivan, supra note 37, at 124.
447 U.S. 557 (1980).

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utility companies.41 The Public Service Commission (PSC), which

initiated the ban, declared that promotional advertising, advertising
intended to stimulate the purchase of utility services, was contrary to the
national policy of conserving energy.42
The Supreme Court struck down the advertising ban holding it in
violation of the First and Fourteenth Amendments. 43 The Court held that
the PSCs advertisements were entitled to First Amendment protection; the
state had demonstrated a substantial interest to be achieved by its
restrictions; and the restriction directly advanced the state interest
involved.44 However, the PSC failed to show that a more limited speech
regulation would be ineffective.45 While the Court recognized that the
entire nation has a crucial interest in energy conservation, when
regulations involve the suppression of speech, the First and Fourteenth
Amendments require that the restriction be no more extensive than is
necessary to serve the state interest.46 Thus the Supreme Court struck
down the New York regulation under what subsequently became known
as the Central Hudson test.47
2.

Posadas de Puerto Rico Associations v. Tourism Co. of

Puerto Rico

The lowest standard of scrutiny applied to a commercial speech

regulation occurred in the Supreme Courts decision of Posadas de Puerto
Rico Associations v. Tourism Co. of Puerto Rico, which upheld a Puerto Rican
law that banned casino advertising to the public in Puerto Rico. 48 In its
application of the Central Hudson test, the Supreme Court gave extreme
deference to the Puerto Rican legislature.49 When examining the third
factor, the Supreme Court held that the legislatures belief that advertising
would increase gambling a reasonable one.50 The Court required no
further proof from the Government to show reasonableness other than the
fact that the appellant had continued to fight the advertising ban all the
way to the Supreme Court, obviously indicating that there was a link

41
42
43
44
45
46
47
48
49
50

Id. at 558 (internal quotation marks omitted).

Id. at 559.
Id. at 561, 571 n.14.
Id. at 571.
Id.
Cent. Hudson Gas & Elec. Corp., 447 U.S. at 571-72.
See id. at 571.
478 U.S. 328, 332, 341-42, 344 (1986).
See id. at 341-42.
Id.

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between advertising and participation in gambling. 51 Likewise, with regard

to the fourth prong, the Supreme Court held that the legislatures
restriction was sufficiently narrowly tailored.52
3.

44 Liquormart, Inc. v. Rhode Island

Ten years after Posadas, the Supreme Court made a revolutionary

decision that dramatically altered the face of commercial speech
jurisprudence in the most significant commercial speech case since Bigelow
v. Virginia.53 In 44 Liquormart, Inc. v. Rhode Island,54 the Court unanimously
struck down a Rhode Island statute that banned the advertising of
alcoholic beverage prices.55 While the justices disagreed on the rationale for
striking down the ban, all of the principal opinions expressed strong
skepticism toward state regulation of advertising as a device for preventing
consumers from knowing about a product in order to induce them not to
buy it.56 The decision indicates that a plurality of the Court would
consider applying a strict-scrutiny level of review to paternalistic
interventions between speaker and listener for the listeners own good. 57
Justice Stevens, along with Justices Kennedy, Souter, and Ginsburg,
applied the Central Hudson test and found that Rhode Island failed to
satisfy the third and fourth prongs of the analysis.58 Justice Stevens noted
that *t+he First Amendment directs *the Court+ to be especially skeptical of
regulations that seek to keep people in the dark for what the government
perceives to be their own good.59 Because of the burden this restriction
imposes, Justice Stevens imposed a special care standard on the
traditional Central Hudson test.60

51

Id. at 342.
See id. at 343-44 (holding that it was within the province of the legislature to determine
whether or not counter-speech would be equally effective as a ban on advertising).
53 2 SMOLLA & NIMMER, supra note 6, 20:9. In Bigelow, the Supreme Court recognized
for the first time that commercial speech was entitled to constitutional protection. See 421 U.S.
809, 818 (1975).
52

54

517 U.S. 484 (1996).

Id. at 489; see also Sullivan, supra note 37, at 126.
56 Sullivan, supra note 37, at 126.
57 Id. at 160.
58 See 44 Liquormart, Inc., 517 U.S. at 505-07.
59 Id. at 503.
60 Timothy R. Mortimer, Comment, 44 Liquormart, Inc. v. Rhode Island: A Toast to the
First Amendment, 32 NEW ENG. L. REV. 1049, 1071 (1998); see also Sean P. Costello, Comment,
Strange Brew: The State of Commercial Speech Jurisprudence Before and After 44 Liquormart, Inc. v.
Rhode Island, 47 CASE W. RES. L. REV. 681, 726 (1997) (*Justice Stevens+ bolstered *the Central
Hudson factors] to such a degree that the test was transformed into something closer to a strict
scrutiny standard than to the intermediate standard that had previously governed commercial
55

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To satisfy the third prong, Rhode Island had to show that the price
advertising ban [would] significantly reduce alcohol consumption.61 Justice
Stevens concluded that any connection between the ban and a significant
change in alcohol consumption would be purely fortuitous, and when the
Government is restricting accurate commercial information for
paternalistic ends, conjecture and speculation will not support the
restriction.62 When analyzing the fourth prong, Justice Stevens concluded
that there were alternative forms of regulation that were less intrusive on
commercial speech that might be more effective than the current ban. 63
Thus, Justice Stevens concluded that even under the less than strict
standard that generally applies in commercial speech cases, the State has
failed to establish a reasonable fit between its abridgment of speech and
its temperance goal.64
Justice Stevenss opinion also considered the implications of Posadas de
Puerto Rico Associations v. Tourism Co. of Puerto Rico on the Courts current
decision and determined that the Posadas Court gave far too much
deference to the legislature in determining that the advertising restriction
passed constitutional muster.65 Justice Stevens, along with three justices,
concluded that Posadas erroneously performed the First Amendment
analysis.66
Justice OConnor, along with the Chief Justice and Justices Souter and
Breyer, applied the unaltered Central Hudson test and determined that,
regardless of the third prong, the fourth prong was not satisfied because
the ban is more extensive than necessary to serve the States interest. 67
Rhode Island had many other methods to discourage consumption that
could have raised the price of alcohol generally, and thus the ban failed the
Central Hudson analysis.68

speech.).
61 44 Liquormart, Inc., 517 U.S. at 505.
62 Id. at 507.
63 Id. (*E+ducational campaigns focused on the problems of excessive, or even
moderate, drinking might prove to be more effective.).
64

Id.
See id. at 509 (Given our longstanding hostility to commercial speech regulation of
this type, Posadas clearly erred in concluding that it was up to the legislature to choose
suppression over a less speech-restrictive policy.).
66 Id.
67 44 Liquormart, Inc., 517 U.S. at 528-29 (OConnor, J., concurring).
68 Id. at 530 (The fit between Rhode Islands method and this particular goal is not
reasonable. If the target is simply higher prices generally to discourage consumption, the
regulation imposes too great, and unnecessary, a prohibition on speech in order to achieve it.
The State has other methods at its disposalmethods that would more directly accomplish
this stated goal without intruding on sellers ability to provide truthful, nonmisleading
65

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Justice Scalia agreed with Justice Thomas that the Central Hudson test
was flawed and with Justice Stevenss concern about paternalistic
governmental policies that prevent men and women from hearing facts
that might not be good for them, yet, to impose anything other than the
Central Hudson test would have been judicial activism.69 In his decision,
Justice Scalia took the Pontius Pilate70 route, stating, I am not disposed to
develop new law, or reinforce old . . . accordingly I merely concur in the
judgment of the Court.71
Finally, Justice Thomass opinion took the most radical approach,
concluding that when the Government interest is to keep legal users of a
product or service ignorant in order to manipulate their choices in the
marketplace . . . such an interest . . . is per se illegitimate and can no more
justify regulation of commercial speech than it can justify regulation of
noncommercial speech.72 Justice Thomas would impose a test of per se
invalidity against all attempts to dissuade legal choices by citizens by
keeping them ignorant . . . .73
While there was no clear majority rationale applied to invalidate the
ban, the principal opinions express*ed+ strong skepticism toward state
regulation of advertising as a device for preventing consumers from
knowing about a product in order to induce them to not buy it . . . .74 This
influential decision has been proclaimed by scholars as the Courts
imposition of heightened scrutiny to commercial speech regulations.75
4.

Lorillard Tobacco Co. v. Reilly

After the revolutionary decision in 44 Liquormart, Inc., the Supreme

Court struck down provisions of a Massachusetts statute which banned
indoor advertisements of smokeless tobacco and cigars within five feet of
the sales floor and outside advertisements within 1000 feet of a school or
playground.76 In Lorillard Tobacco Co. v. Reilly, the Court found that a
substantial ban on the dissemination of information to legal adults cannot

information to customers.).
69

Id. at 517 (Scalia, J., concurring).

See Matthew 27:24. This reference is to the Roman Judge most notably known for his
participation in the execution of Jesus when he washed his hands and said, I am innocent of
this mans blood. Id.
71 44 Liquormart, Inc., 517 U.S. at 518.
72 Id. (Thomas, J., concurring).
73 Id. at 526; see also Mortimer, supra note 60, at 1079.
74 Sullivan, supra note 37, at 126.
75 See Mortimer, supra note 60, at 1050; see also 2 SMOLLA & NIMMER, supra note 6, 20:9;
Sullivan, supra note 37, at 125; Costello, supra note 60, at 688, 721.
70

76

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 566 (2001).

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be justified by the Governments interest in protecting children.77 Even

though the Government has a substantial, maybe even compelling, interest
in preventing underage tobacco use, it should not be forgotten that
manufacturers and retailers have an interest in conveying truthful
information about their products to adults, and adults have a
corresponding interest in receiving truthful information about tobacco
products.78 Thus, the statute was deemed unconstitutional according to
the Central Hudson test.79
5.

Pitt News v. Pappert

In Pitt News v. Pappert,80 the Third Circuit Court of Appeals confronted

the same fact pattern as that dealt with by the Fourth Circuit in Educational
Media Co. at Virginia Tech., Inc. v. Swecker.81 The full panel of the Third
Circuit concluded that the Pennsylvania regulation banning alcohol
advertisements in college newspapers was unconstitutional because the
law represents an impermissible restriction on commercial speech.82
Applying the test established in Central Hudson, the Third Circuit found
that the Pennsylvania regulation failed the third and fourth prongs of the
analysis.83
Under the third prong, the Third Circuit held that the Commonwealth
relie*d+ on nothing more than speculation and conjecture.84 The
regulation would not affect underage and abusive drinking to a material
degree because:
[e]ven if Pitt students do not see alcoholic beverage ads in The
Pitt News, they will still be exposed to a torrent of beer ads on
television and the radio, and they will still see alcoholic beverage
ads in other publications, including the other free weekly
Pittsburgh papers that are displayed on campus together with
The Pitt News.85

77 Id. at 564 (In a case involving indecent speech on the Internet we explained that the
governmental interest in protecting children from harmful materials . . . does not justify an
unnecessarily broad suppression of speech addressed to adults. (quoting Reno v. ACLU, 521
U.S. 844, 875 (1997))).
78 Id.
79 Id. at 566.
80 379 F.3d 96 (3d Cir. 2004).
81 See id. at 102 (describing a law enacted by the Pennsylvania legislature prohibiting
advertising of alcoholic beverages at colleges and universities).
82
83
84
85

Id. at 105.
Id. at 107.
Id. at 107-08.
Id. at 107.

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In applying the fourth prong, the Third Circuit found the regulation both
over- and under-inclusive because more than sixty-seven percent of Pitt
students were aged twenty-one-years old or older, and seventy-five
percent of the total University population was of legal drinking age. 86
Relying on Lorillard, the court found that the regulation was not narrowly
tailored . . . because it prevented the communication to adults of truthful
information about products that adults could lawfully purchase and use. 87
Thus, the Third Circuit found the Pennsylvania regulation unconstitutional
under Central Hudson.88
D. Educational Media Co. at Virginia Tech, Inc. v. Swecker
1.

Majority Opinion

In Educational Media Co. at Virginia Tech, Inc. v. Swecker, the Fourth

Circuit confronted the validity of an alcohol-advertising ban promulgated
by the Department of Virginia Alcohol Beverage Control (ABC). 89 The
purpose of the advertising ban was to prohibit advertising that [would]
entice or encourage underage and abusive drinking by college students.90
The regulation was one part of the ABCs comprehensive efforts to reduce
the use of alcohol on college campuses. 91 The regulation was challenged by
the Collegiate Times and the Cavalier Daily, which are free student
publications distributed throughout campus and the surrounding areas. 92
The newspapers relied on advertisement sales for a majority of their
budget and claimed to have lost approximately $30,000 from alcohol
advertisements.93
A majority of the Fourth Circuit upheld the constitutionality of the
regulation under the Central Hudson test.94 The first and second prongs of
the test were not in dispute between the parties. 95 The heart of the
controversy arose over the application of the third and fourth prongs of the
Central Hudson test.96
86

Pitt News, 379 F.3d at 108.

Id.
88 Id. at 109.
89 See Educ. Media Co. at Va. Tech., Inc. v. Swecker, 602 F.3d 583, 586-87 (4th Cir. 2010).
90 Brief of Appellant, supra note 2, at 8.
91 See id. at 8-9.
92 Brief of Appellee at 2-4, Educ. Media Co., 602 F.3d 583 (No. 08-1798), 2009 WL 1399396
[hereinafter Brief of Appellee].
87

93
94
95
96

Id. at 4.
Educ. Media Co., 602 F.3d at 591.
Id. at 589.
See id. at 589-90.

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When applying the third prong, the Fourth Circuit, relying on Lorillard,
held that the link between the states interest and the advertising ban could
be shown by history, consensus, and simple common sense.97 While
there might not always be a link between consumption and advertising, the
correlation here is strengthened because college student publications
primarily target college students and play an inimitable role on campus.98
The Fourth Circuit agreed with the ABC that if there was no connection
between advertising and increased consumption, it would be
counterintuitive for alcohol vendors to spend copious amounts of money
on advertisement.99 Thus, the court concluded that the ABC had
sufficiently shown that the advertising ban directly and materially
advanced the Governments substantial interest.100
Finally, the Fourth Circuit considered whether the advertising ban was
narrowly drawn.101 The court decided that the ABC regulation was
sufficiently narrow because the ABC established a multi-pronged attack
against underage and abusive drinking, of which the regulation was
merely a part.102 *T+he possible existence of more effective methods does
not undermine [the regulation], especially in light of its role in a
comprehensive scheme to fight underage and abusive drinking. 103 Thus,
the Fourth Circuit concluded that the Virginia advertising ban was
constitutional.104
2.

Dissenting Opinion

Relying on Pitt News v. Pappert, Justice Moon dissented finding that the
regulation fail*ed+ to directly advance*+ the governmental interest
asserted and *was+ more extensive than . . . necessary to serve that
interest.105 Applying the third prong, Justice Moon agreed with the
district court that the Governments evidence was speculative, and the
ABCs expert offer*ed+ no rationale or evidence, beyond conjecture, to
support his claim as to the singularity of a college publication. . . . [H]is
insight ignores the common sense reality that college students now live in a

97

Id. at 589 (quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001)).
Id. at 590.
99 Id.
100 See Educ. Media Co., 602 F.3d at 590.
101 Id.
102 Id. at 591.
103 Id.; see also Brief of Appellant, supra note 2, at 9 (ABC has undertaken many steps to
reduce underage and abusive drinking on college campuses . . . .).
104 Educ. Media Co., 602 F.3d at 591.
105 Id. at 596 (Moon, J., dissenting) (quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.
Commn of N.Y., 447 U.S. 557, 566 (1979)).
98

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multimedia environment, . . . all of which display uncensored alcoholic

advertisements.106 Likewise, Justice Moon noted the regulation
impermissibly restricted commercial information given to the adult
population.107
With regards to the fourth prong of the Central Hudson test, Justice
Moon found that a majority of the readership of the newspapers was of
legal age to drink, which meant the regulation was not narrowly tailored. 108
Justice Moon concluded:
the scope of [the regulation], and its impact on protected
commercial speech, are far out of proportion to the interest
served, and the record indicates that the Commonwealth can
seek to combat underage and abusive drinking by other means
that are far more direct and that do not affect the First
Amendment.109

ANALYSIS
II. Fourth Circuits Incorrect Application of the Third Prong of the
Central Hudson Test
The third prong in the Central Hudson test requires the Government to
show that the regulation will alleviate the Governments perceived harm
to a material degree.110 In finding that the Virginia regulation satisfied
the third prong of the analysis, the Fourth Circuit relied heavily on the
popularity of college newspapers in campus life.111 The Fourth Circuit
failed to consider the availability of other, more popular media to which
students will still have significant access. 112 Access to other forms of
advertisements will decrease the impact of the ban on the asserted
interest.113

106

Id. at 592 n.2.

Id. at 594 (The regulation not only impermissibly infringes upon the constitutional
rights of adults . . . it also infringes upon the rights of those readers who are not yet twentyone, who nonetheless have a protected interest in receiving truthful, non-misleading
information about a lawful product that they will soon have the legal right to consume.).
107

108
109
110
111
112
113

Id. at 595.
Id. at 595-96 (quoting Pitt News v. Pappert, 379 F.3d 96, 108 (3d Cir. 2004)).
Fla. Bar v. Went For It, Inc., 515 U.S. 618, 626 (1995).
See Educ. Media Co., 602 F.3d at 590.
See id.
See infra notes 120-28 and accompanying text.

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Today the mass media are inescapable and people feel slightly less
alive when unhooked from long lines of news and entertainment. 114
Among the forms of mass media are television; radio; film and videos;
print media, such as newspapers, magazines, and direct mail; and
photography.115 By far the most popular would be television.116 Individuals
watch close to eighteen hours of television per week, equal to thirty-nine
days in a calendar year.117 The implications of this form of media are
astronomical, particularly with regards to its advertising potential. 118
Besides television, the Internet is a significant contributor to the advertising
world.119
With the availability of other advertising mediums, the impact of an
advertising ban will not be significant or have a material effect on
underage drinking.120 The Third Circuit, in Pitt News v. Pappert, specifically
recognized the influence of other forms of media in holding that the
Pennsylvania regulation failed the third prong of Central Hudson.121 An
alcohol-advertising ban cannot materially affect abusive, underage
drinking on college campuses when there are so many other media sources
providing the same information.122
The Fourth Circuit should have found that the Virginia regulation
failed to satisfy the third prong of Central Hudson. The experts provided by
both parties agreed that there is little empirical evidence connecting
advertising and alcohol consumption. 123 Most research indicates that
114

JAMES W. CAREY, COMMUNICATION AS CULTURE, ESSAYS ON MEDIA AND SOCIETY 1

(2009).
115 Fla. Intl Univ., Types of Media, ONLINE ADVANCEMENT OF STUDENT INFORMATION
SKILLS (Aug. 26, 2009, 4:08 PM), https://oasis.fiu.edu/Ch8/ch8page3.htm.
116 Deloitte State of the Media Democracy Survey: Recession Intensifies Americas Love for TV,
DELOITTE (Dec. 15, 2009), http://www.deloitte.com/view/en_US/us/Industries/Media-Enter
tainment/press-release/dce196d6a8295210VgnVCM100000ba42f00aRCRD.htm.
117

Id.
Id. (Television continues to reign as the most influential advertising medium, with 83
percent of consumers identifying TV advertising as one of the top three media with the most
impact on their buying decisions.).
118

119

Internet Marketing Advertising, INTERNET ADVERTISING FOR PROFIT, http://

www.internetadvertisingforprofit.com (last visited Oct. 27, 2011) (Since then the Internet hit
meteoric growth and is now universally accepted as the worlds most sophisticated,
interconnected database.). In the United Kingdom, the Internet has surpassed television as
the major advertising venue. Mark Sweney, Internet Overtakes Television to Become Biggest
Advertising Sector in the UK, THE GUARDIAN (Sept. 29, 2009), http://www.guardian.co.uk/
media/2009/sep/30/internet-biggest-uk-advertising-sector.
120
121
122
123

See Fla. Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995).
Pitt News v. Pappert, 379 F.3d 96, 107 (3d Cir. 2004).
See id.
Brief of Appellee, supra note 92, at 6; see also Maia Szalavitz, Understanding Alcohol

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advertising only increases brand recognition rather than overall

consumption.124 Likewise, the research that does exist does not indicate that
banning a single segment of the media will make a material difference in
the rate of consumption.125 When one media source is restricted,
advertising increases in other outlets.126 Therefore, even if the Virginia
Government could show that the advertising ban had some effect on
underage alcohol consumption, it certainly cannot show that it has a
material effect.127
III. Fourth Circuits Incorrect Application of the Fourth Prong of the
Central Hudson Test
A. Over-inclusiveness of the Regulation Violates Narrowly Tailored
Requirement
The fourth prong in the Central Hudson test requires the Government to
show that the regulation is not more extensive than is necessary to serve
that interest.128 Even though Central Hudson does not require the least
restrictive method, *t+he availability of less burdensome alternatives to
reach the stated goal . . . and the means chosen to accomplish those ends
may be too imprecise to withstand First Amendment scrutiny. 129 Likewise,
the Supreme Court decision in 44 Liquormart, Inc. v. Rhode Island indicated a
Abuse: Alcohol and Advertising, STATS AT GEORGE MASON UNIVERSITY (Oct. 21, 2005),
http://alcoholnews.org/advertising.html (*T+he research evidence is so mixed that it is hard to
know whether a total ban would have a significant impact.). While appellants expert
testified at trial that there was a connection between advertising and consumption, his
published articles indicate that there is actually very little connection. Brief of Appellee, supra
note 92, at 6 (*I+n his most recent paper on alcohol advertising, as well as in his deposition, he
acknowledged that there is very little empirical evidence that alcohol advertising has any
effect on actual alcohol consumption.).
124 See Alcohol and Tobacco Advertising Bans Dont Work, PENN STATE LIVE: THE
UNIVERSITYS OFFICIAL NEWS SOURCE (Aug. 16, 2010), http://live.psu.edu/story/47884.
125

Brief of Appellee, supra note 92, at 11.

See id. at 18-19 (A reduction in media available to the alcohol industry is likely to
result in increased use of other forms of marketing . . . .); see also Szalavitz, supra note 123
(The research is clear . . . that banning advertising in only one or two mediasay TV and
radiois ineffective, as advertising will increase in other media to fill the gap.).
126

127 Brief of Appellee, supra note 92, at 19. If local bars and alcohol manufacturers are
prohibited from advertising in college newspapers, they will increase their advertising on
college radio shows to fulfill their advertising budget, thereby defeating the effect of the
advertising ban. See Szalavitz, supra note 123.
128

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of N.Y., 447 U.S. 557, 566

(1980).
129 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 529 (1996) (OConnor, J., concurring)
(citing Rubin v. Coors Brewing Co., 514 U.S. 476, 486-87 (1995)).

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trend towards adopting a more heightened-scrutiny standard.130

The Supreme Court has recognized that adults have a right to
information and that that right cannot be restricted given the interest in
protecting children.131 The interest in protecting minors cannot be used as a
cover to impose restrictions on the adult population.132 In Lorillard Tobacco
Co. v. Reilly, the Court recognized that the Government must consider the
right of adults to receive information regarding legal activities.133
Scholars have advocated a balancing approach when considering the
Governments interest in protecting minors and an adults right to lawful
information.134 Courts should strike down *d+irect suppression . . . when a
less speech-restrictive means exists to accomplish the governments
objective.135 This view is supported by the Courts current trend to strike
down regulations when other available means are less burdensome on the
freedom of speech.136
Following the balancing approach, the Fourth Circuit should have
considered that a majority of the newspapers readership involved was of
legal drinking age, a fact to which both parties agree.137 Also, the minors
considered in this case were eighteen- or nineteen-years-old, the age when
most individuals enter college. As Justice Moon noted in his dissent:
The regulation not only impermissibly infringes upon the
constitutional rights of adults . . . it also infringes upon the rights
of those readers who are not yet twenty-one, who nonetheless
have a protected interest in receiving truthful, non-misleading

130

See id.
See Reno v. ACLU, 521 U.S. 844, 849 (1997).
132 Clay Calvert et al., Playing Politics or Protecting Children? Congressional Action & a First
Amendment Analysis of the Family Smoking Prevention and Tobacco Control Act, 36 J. LEGIS. 201,
244 (2010) (*R+egardless of the strength of the governments interest in protecting children,
the level of discourse reaching a mailbox simply cannot be limited to that which would be
suitable for a sandbox. (quoting Reno, 521 U.S. at 875)). The Virginia Governments interest in
protecting minors is less substantial than in other cases considering that minors protected
by this regulation are eighteen- or nineteen-year-old college students. See Szalavitz, supra note
123.
131

133

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 564 (2001); see also KEVIN W. SAUNDERS,
SAVING OUR CHILDREN FROM THE FIRST AMENDMENT 220 (2003) (The outdoor bans were
simply too injurious to adult interests in receiving communications regarding tobacco.).
134 See Alan E. Garfield, Protecting Children from Speech, 57 FLA. L. REV. 565, 646-47 (2005).
135 Id. at 650.
136 See, e.g., Lorillard Tobacco Co., 533 U.S. 525, 570 (upholding Massachusettss
comprehensive regulations governing advertising and sale of cigarettes, smokeless tobacco,
and cigars); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516 (1996) (striking down Rhode
Islands prohibition against advertising the retail price of alcoholic beverages).
137 Educ. Media Co. at Va. Tech., Inc. v. Swecker, 602 F.3d 583, 595 (4th Cir. 2010) (Moon,
J., dissenting).

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information about a lawful product that they will soon have the
legal right to consume. 138

The minors involved here are not eleven- or twelve-years-old, justifying a

greater restriction.139 The Government interest in preventing underage
drinking is not as strong when the individuals considered are on the verge
of the legal drinking age.140
Given the weight of the Governments interest against the right of
adults to commercial information, the Fourth Circuit should have found
the Virginia regulation was not narrowly tailored and failed the fourth
prong of the Central Hudson test.141
B. Counter-Advertising as Less Restrictive on Free Speech
Consistent with First Amendment principles, if the Government wants
to decrease underage drinking on college campuses, it should pursue a
policy of counter-advertising, not enforced silence.142 If the Government
is concerned about a particular product or practice, they are free to
propagandize against *it+.143 Counter-advertising can be used to
demonstrate responsible alcohol use.144 These campaigns would be more
consistent with First Amendment ideology by encouraging the free flow of
information, instead of silencing communication.145
The history of tobacco counter-advertising can illuminate the
effectiveness of a policy concerning alcohol.146 From 1967 to 1970,
broadcasters were required to donate airwaves to anti-tobacco
advertisements.147 Several studies from the time period indicate that the
policy contributed to a reduction in cigarette consumption.148 In 2005, the

138

Educ. Media Co., 602 F.3d at 594.

See Szalavitz, supra note 123.
140 Id.
141 See Educ. Media Co., 602 F.3d at 596 (Moon, J., dissenting).
142 MICHAEL G. GARTNER, ADVERTISING AND THE FIRST AMENDMENT 50 (1989) (If there be
time to expose through discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech, not enforced silence.
(quoting Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring))).
139

143

Sullivan, supra note 37, at 141.

Gina Agostinelli & Joel Grube, Alcohol Counter-Advertising and the Media: A Review of
Recent Research, 26 ALCOHOL RES. & HEALTH 15, 16 (2002), available at http://
pubs.niaaa.nih.gov/publications/arh26-1/15-21.pdf.
145 See Whitney, 274 U.S. at 377 (Brandeis, J., concurring).
146 Henry Saffer, Tobacco Advertising and Promotion, in TOBACCO CONTROL IN DEVELOPING
COUNTRIES 224-25 (Prabhat Jha & Frank Chaloupka eds., 2000).
144

147
148

Id. at 224.
Id. at 224-25.

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White House Office of National Drug Control Policy launched an anti-drug

teen brand, Above the Influence.149 The messages are broadcast on
television networks such as ABC Family, MTV, and VH1. 150 While not
limited to alcohol, Above the Influence attempts to promote education
regarding illegal substances at a national and local level. 151 Research and
time is needed to determine the effectiveness of campaigns such as this. 152
IV. Erosion of Constitutional Protection by a Return to a Paternalistic
Approach
When it established the doctrine of commercial speech, the Supreme
Court made clear that government regulations based on paternalistic
motives would not pass constitutional muster.153 In Virginia State Board of
Pharmacy v. Virginia Citizens Consumer Council, the Court said that the
Virginia legislature could seek its goal of retaining professionalism among
pharmacists, but it *could+ not do so by keeping the public in ignorance of
the entirely lawful terms that competing pharmacists are offering. 154 The
Court refused to affirm the government regulation because it was based on
the assumption that consumers were unable to distinguish between price
and professionalism.155 The Court indicated that instead of taking this
highly paternalistic approach,156 the Government should assume that this
information is not in itself harmful, that people will perceive their own best
interests if only they are well enough informed, and that the best means to
that end is to open the channels of communication rather than to close
them.157 Even though the Government may believe that individuals
should follow the professionalism of a pharmacist rather than the price of
prescriptions, it is not their decision to make.158 In recent decisions, the
Supreme Court has restated its dislike of paternalistic government

149 Teen Voices Central to the Above the Influence Campaign, PR NEWSWIRE (June 7, 2010),
http://www.prnewswire.com/news-releases/teen-voices-central-to-the-above-the-influencecampaign-95803194.html.
150

Id.
National Youth Anti-Drug Media Campaign, OFF. OF NATL DRUG CONTROL POLY,
http://www.whitehouse.gov/ondcp/anti-drug-media-campaign (last visited Oct. 27, 2011).
152 See id.
153 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 769-70
(1976).
151

154
155
156
157
158

Id. at 770.
Id. at 769-70.
Id. at 770.
Id.
Id.

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motives.159
The decision of the Fourth Circuit was clearly paternalistic in direct
violation of current precedent permitting the freedom of commercial
speech.160 By allowing the Virginia Government to restrict the flow of
information, the Fourth Circuit allowed the Government to manipulate
citizens behavior.161 That decision cuts through the core traditions and
values of our system of free expression and will have dangerous
implications for our democratic society.162 The Fourth Circuit returned
commercial speech to pre-constitutional protection, in which the
Government is not limited in regulating purely commercial advertising163
and by doing so has allowed a violation of the First Amendment.

CONCLUSION
The Governments interest in preventing underage drinking is an
admirable goal that is of critical importance to our society.164 The dangers
of underage drinking are well established.165 But that interest is as
dangerous as it is compelling.166 Courts have to walk a tight rope when
considering regulations that suppress lawful information based on

159 E.g., Rubin v. Coors Brewing Co., 514 U.S. 476, 497 (1995) (Stevens, J., concurring)
(*T+he Constitution is most skeptical of supposed state interests that seek to keep people in
the dark for what the government believes to be their own good. One of the vagaries of the
commercial speech doctrine in its current form is that the Court sometimes takes such
paternalistic motives seriously. (citations omitted)); see also Robert Post, The Constitutional
Status of Commercial Speech, 48 UCLA L. REV. 1, 50 (2000).
160

See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 510 (1996).
See Martin H. Redish, Tobacco Advertising and the First Amendment, 81 IOWA L. REV. 589,
635 (1996).
162 See id. at 635-36 (The fundamental premises of the First Amendmentindeed, of the
very democratic system of which the First Amendment is such an important partis that
citizens must be trusted to make their own lawful choices on the basis of a free and open
competition of ideas, opinions and information. If government is permitted paternalistically to
shield its citizens from such open debate as a means of controlling their behavioral choices, it
will have simultaneously affronted individual dignity and stunted the individuals personal
and intellectual growth . . . . It will simultaneously have contributed to an intellectual atrophy
of the citizen that ultimately will undermine her effective participation in the democratic
system.).
161

163

See, e.g., Valentine v. Chrestensen, 316 U.S. 52, 54 (1942).

Pitt News v. Pappert, 379 F.3d 96, 106 (3d Cir. 2004).
165 See Statistics, STUDENTS AGAINST DESTRUCTIVE DECISIONS, http://www.sadd.org
/stats.htm (last updated Jan. 2011).
166 Garfield, supra note 134, at 649 (quoting ACLU v. Reno, 929 F. Supp. 824, 882 (E.D. Pa.
1996) (Dalzell, J., supporting opinion)).
164

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protecting children.167 Courts must resist sustaining regulations that burn

the house to roast the pig.168 Citizens have a legal right to the free flow of
economic information.169 When the Government suppresses the truthful
advocacy of a lawful activity in the interest of protecting children, the
interest must be implemented by use of a scalpel, rather than a hatchet. 170
The Fourth Circuits opinion in Swecker was indifferent to the First
Amendment rights of adults.171 Seizing on the protection of minors, the
Fourth Circuits decision reverted back to a paternalistic view of
government.172 The Central Hudson analysis should have been adequate
protection for commercial speech, but the Fourth Circuit failed to consider
the implications of 44 Liquormart, Inc. v. Rhode Island, which undoubtedly
increased the level of scrutiny applied to cases involving an absolute ban
on commercial speech.173 The Fourth Circuit should have followed the
example of its sister circuit in ruling that the advertising ban was an
impermissible restriction on commercial speech.174 By its decision, the
Fourth Circuit has allowed the Virginia Government to violate commercial
speech protection by imposing paternalistic goals, under the guise of
protecting children.175

167
168
169

Id.
Id. at 647 (quoting Butler v. Michigan, 353 U.S. 380, 383 (1957)).
See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 769-70

(1976).
170

Redish, supra note 161, at 638.

See Educ. Media Co. at Va. Tech., Inc. v. Swecker, 602 F.3d 583, 591 (4th Cir. 2010)
(Moon, J., dissenting).
171

172
173
174
175

See id.
See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996).
See Pitt News v. Pappert, 379 F.3d 96, 105 (3d Cir. 2004).
See Educ. Media Co., 602 F.3d at 591.